Madhya Pradesh High Court
Mohd. Wasim vs State Of M.P on 30 June, 2011
1 Criminal Revision No.1532/1998
HIGH COURT OF MADHYA PRADESH JABALPUR
Criminal Revision No.1532/1998
Mohammad Wasim
Vs.
State of Madhya Pradesh
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Present : Hon'ble Shri Justice N.K. Gupta.
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Name of counsel for the parties:
Shri Ishteyaq Husain, Advocate for the applicant.
Shri G.S. Thakur, Panel Lawyer for the respondent/State.
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ORDER
(Passed on 30th day of June, 2011) The applicant has preferred this revision against the judgment dated 16.12.1998 passed by Additional Sessions Judge, Burhanpur in Criminal Appeal No.63/1997 by which the appeal filed by the applicant was dismissed in toto. The appeal was filed against the judgment dated 30.8.1997 passed by J.M.F.C. Burhanpur (Shri P.L. Dinkar) in Criminal Appeal No.492/1987 by which the applicant was convicted for the offence under Section 5/16 of M.P. Van Upaj Vyapar Adhiniyam (hereinafter referred as "Adhiniyam") and sentenced for two months S.I. with fine of Rs.3,000/-. In default of payment of fine, he was to undergo for one month S.I.
2. Prosecution story in short is that on 4.12.1983, the police of Police Station Lalbagh, Burhanpur had seized 30 logs 2 Criminal Revision No.1532/1998 of timber from a truck bearing registration no. MPS 6990, which was driven by co-accused Suresh @ Radhakishan. No transit pass was found with the applicant. After registration of crime, the Police Lalbagh, Burhanpur had filed challan after due investigation.
3. The applicant abjured his guilt. No specific defence was taken by him. No defence evidence was adduced by the applicant.
4. Learned J.M.F.C. Burhanpur after considering the prosecution evidence, convicted the applicant for the offence punishable under Section 5/16 of the Act and sentenced him as stated above. In appeal, no relief was granted to the applicant.
5. I have heard the learned counsel for both the parties.
6. Learned counsel for the applicant submits that in the memo of charge prepared by the Magistrate First Class, it is nowhere mentioned that crime was committed for the offence of the Act. In the memo of charge, name of the Act is mentioned to be "Rashtriya Vanopaj Sanrakshan Adhiniyam" and, therefore, the applicant is convicted for the offence, for which no charge was framed, therefore, conviction is bad in law. Learned counsel for the applicant further submits that the police could not take the cognizance in the matter according to the provisions of Section 18 of the Act. No notification has been 3 Criminal Revision No.1532/1998 produced before the trial Court that a Police Officer could prepare a report (challan) in the matter and, therefore, in absence of the notification, cognizance taken by the Court seems to be improper. He further submits that at the time of seizure, the applicant had no role with the timber found in the truck. The co-accused Suresh brought some stones from a place to the house of the applicant. After unloading the stones and when the truck was stationed near the house of the applicant where the porters were loading alleged logs, the applicant was not present there. He had no knowledge about such logs. It was a transaction between the driver of the truck and owner of the logs and, therefore, it cannot be said that in a stationary truck, goods loaded in the truck were of the possession of the applicant. Consequently, no presumption can be made against the applicant as mentioned in the Act.
7. On the other hand, learned Panel Lawyer opposes the revision. He submits that no such plea was taken before both the Courts below and, therefore, such plea cannot be taken before this Court.
8. As far as the framing of charge is concerned, learned Judicial Magistrate First Class has mentioned the complete name of the Act in the judgment passed by him, therefore, though the name of the Act is not correctly mentioned in the memo of charge, but it appears that it is a 4 Criminal Revision No.1532/1998 typographical error and the applicant and his defence lawyer were well conversant about the actual Adhiniyam for which charge was framed. No such grievance raised either before the trial Court or the First Appellate Court. Under such circumstances, it is clear that the charge was framed for the offence under Section 5/16 of the Adhiniyam. The applicant is convicted for the the same offence, therefore, such contention cannot be accepted that the applicant is convicted for the offence for which no charge was framed.
9. Relating to second contention of learned counsel for the applicant, it would be proper to mention the provisions of Section 18 of the Act, which is as under:-
"Cognizance of offences:- No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by any Forest Officer not below the rank of a Divisional Forest Officer or any other officer as may be authorized by the State Government in this behalf."
10. The State Government has authorized all Assistant Conservators of Forest Department for that purpose by notification dated 1.8.1969. The present Adhiniyam is a Special Act, which is enacted by the State Government, therefore, cognizance of the offence is required to be taken according to the provisions of Section 18 of the Act. In the present Act, it is nowhere enacted for the offence under Section 5/16 of the 5 Criminal Revision No.1532/1998 Adhiniyam that it is cognizable in general, but it was restricted and cognizance could be taken by the Court, if a complaint was filed by the competent Officer. There is a residuary clause in the provisions that the State Government may authorize any other Officer, who can file a report in writing under Section 18 of the Adhiniyam. Therefore, it was for the prosecution to prove that the Police Officers were authorized by the State Government to file such a report. No such authorization notification has been produced either before the trial Court, appellate Court or before this Court, therefore, according to the provisions of Section 18 of the Act, the trial Court could not take the cognizance on the basis of report submitted by the Officers of the Police Station Lalbagh, Burhanpur. It was for the police to transfer the case to Forest Department after seizure of logs.
11. Since the objection taken by the applicant is a legal objection, therefore, it can be raised before this Court by way of such revision, therefore, objection taken by the learned counsel for the applicant can be considered at this stage. When the trial Court could not take the cognizance on the basis of report filed by the Police then no conviction could be directed by the trial Court. Under such circumstances, the conviction directed by the trial Court cannot be sustained.
6 Criminal Revision No.1532/1998
12. Parasram (PW-1), Punjaji (PW-2), Ramdas (PW-3), Kadwa (PW-4), Rama (PW-5) and Kanhaiya (PW-6) were examined as eyewitnesses. Out of these witnesses, Ramdas (PW-3) turned hostile, whereas other witnesses namely Kadwa (PW-4), Ramdas (PW-5) and Kanhaiya (PW-6) have stated in a different manner. Ramdas and Kanhaiya have stated that they were present with the co-accused Suresh and the truck. Suresh transported the stones from Khandwa to Burhanpur by the said truck. At Lalbagh, Burhanpur the stones were unloaded and thereafter they went to take tea in a hotel. When they came back to the truck, some logs were lying near the truck and the police arrested the driver Suresh. They were not aware that who was the possessor of the alleged timber. Kadwa has confirmed the statements given by Rama and Kanhaiya but he added that the timber was found filled in the truck when he came back from the hotel.
13. Other witnesses namely Parasram and Punjaji have stated that they unloaded the stones at Lalbagh, Burhanpur area. The truck was stationed in the night. They transported some other materials from the mine of Jainabad to the house of the applicant Wasim Bhai. Thereafter, Wasim Bhai had directed them that logs be loaded in the truck so that the logs may be transported up to saw mill of that area. In the meantime, the police came and seized the truck as well as the logs. In the 7 Criminal Revision No.1532/1998 cross-examination of witness Punjaji, he has accepted that he could not tell to the police regarding the ownership of the logs. He has further accepted that when they were loading some logs in the truck, they were caught. The police has released the truck as well as the co-accused Suresh on the next day. Only 4- 5 logs were seized by the police. The witness Punjaji has admitted in his cross-examination that timber was not found in that house, where the stones were dropped. He has also admitted that he was a labour on the truck. The co-accused Suresh directed him to load the timber in the truck and, therefore, this witness and other labours were loading the timber in the truck. He has admitted in para 1 of his examination-in-chief that he does not know the applicant Wasim Bhai but the co-accused Suresh was known to him, therefore, it appears from his statement that he was loading the timber by the directions of co-accused Suresh @ Radhakishan. This witness had no knowledge that prior to loading the timber in the truck, where the timber was lying. According to the statement of Punjaji, it appears that some talks took place between the owner of the timber and the co-accused Suresh and, therefore, Suresh directed to load the timber in the truck. The statement of Punjaji could not connect the applicant with timber.
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14. Parasram (PW-1) has stated that the applicant told the co-accused Suresh to drop the timber to a Saw Mill. He has also stated that such talks took place between the applicant and co-accused Suresh when he was present at the time of such talks. However, Parasram has admitted that he is brother of co- accused Suresh and, therefore, it is possible that he has stated before the trial Court and the police in such a manner to save his brother co-accused Suresh. Therefore, sole statement of witness Parasram cannot be believed.
15. The investigation officer Shri R.C. Sharma, S.O. Lalbagh Burhanpur behaved in a very strange manner. He prepared the seizure memo dated 4.12.1983, in which it is shown that the timber was seized from the possession of the applicant and the timber was lying in the house of the applicant. If the seizure memo is believed, then the entire statements given by the witnesses namely Punjaji and Parasram shall go away. According to the witnesses, the timber was found in the truck and the Police Officers took the truck with the timber and driver Suresh, with all the labours to the Police Station. When the timber was found in the house of the applicant himself then it was not necessary for the police to take the truck itself and driver with all the labours to the Police Station. The contents of the seizure memo are contradictory to the facts mentioned by the witnesses. If the seizure memo is 9 Criminal Revision No.1532/1998 true then the statements given by all eye witnesses seems to be false. Case of the police is based on the seizure memo. The investigation officer did not mention the date in the statements given by various witnesses under Section 161 of Cr.P.C. and, therefore, it is not clear that on what date such statements were recorded. It is possible that the witnesses namely Parasram and Punjaji are telling an afterthought story. Looking to the seizure memo, certainly the statements given by the witnesses Parasram and Punjaji seems to be concocted and afterthought, which cannot be believed.
16. The most important documents in the case was a seizure memo by which it was shown that the timber was found in the house of the applicant. The seizure memo was prepared by S.O. Shri Sharma. Ramdas and Dashrath were the witnesses of that seizure. The witness Ramdas turned hostile and Dashrath was not examined before the trial Court. He could not be produced before the trial Court because he was absconding. Unfortunately, S.O. Shri R.C. Sharma was not examined before the trial Court and, therefore, the seizure memo was not proved at all. It is nowhere proved that the timber was seized from the possession of the applicant and, therefore, without the examination of seizure officer and proof of seizure memo, it cannot be said that the timber was found with the applicant. Learned both the Courts below have erred in holding that the 10 Criminal Revision No.1532/1998 timber was found in the possession of the applicant. No eyewitnesses have stated that the timber was in the house of the applicant and, therefore, the seizure of timber from the possession of the applicant is not at all proved. Since no timber has been seized from the truck, therefore, the statements given the witnesses namely Parasram and Punjaji have no value. Under such circumstances, where the seizure memo was not proved and the facts relating to the seizure memo were also not proved, the applicant could not convicted for the offence under Section 5/16 of Adhiniyam.
17. On the basis of aforesaid discussion, where learned Magistrate could not take the cognizance in the case without getting the report from the competent Officer as per the provision of Section 18 of the Adhiniyam, conviction directed against the applicant cannot be sustained. Similarly, it is nowhere proved that the timber was found from the possession of the applicant at the time of seizure and, therefore, on this count also the applicant cannot be convicted for aforesaid offence. Learned trial Judge as well as Additional Sessions Judge has passed the judgment of conviction without any basis, which not only suffers by illegality but also it is perverse. Under these circumstances, interference is required to be directed in this revision. Consequently, the revision filed by the applicant is hereby allowed. The conviction as well as the sentence imposed 11 Criminal Revision No.1532/1998 by both the Courts below is hereby set aside. The applicant shall get the fine amount back from the trial Court if he has deposited the same.
18. Now, the presence of the applicant is not more required before this Court and, therefore, it is directed that the bail bonds furnished by the applicant shall stand discharged.
(N.K. GUPTA) JUDGE 30.06.2011 pnkj